Transitioning between the Public and Private Bar: Ethical Dilemma ? When Lawyers Move Introduction The theme of this paper is to examine some of the ethical issues that may arise when lawyers transition/move/change employment and how such dilemmas can be resolved or have been resolved by the jurisprudence and in application of such pronouncements. In today’s global village that is the world, lawyers are moving from employment to employment, sometimes at the speed of light. Such attorney mobility has attracted judicial attention and in 1987 Chief Justice Rehnquist opined that counsel: “. . .have become increasingly mobile, feeling much freer than they formerly did and having much greater opportunity than they formerly did, to shift from one firm to another and take revenue-producing clients with them.” (see Chief Justice William H. Rehnquist, Dedicatory Address, 62 IND. L.J. 151, at 152 (1987). http://www.repository.law.indiana.edu) Embedded in this statement are several ethical dilemmas, succinctly proving that increasingly lawyers need clarity on ethical issues that arise and how to resolve them. This is especially true where a lawyer is going into solo practice and may not have the benefit of a chamber/firm like environment to help him to resolve ethical dilemmas. According to the English Essayist Charles Lamb, “he is no lawyer who cannot take two sides.” Often the “sides” to be taken are a decision that include, for example, whether to leave the public bar for the private bar; one public bar for another (eg. civil to criminal or vice versa) or private bar for private bar (eg. civil to criminal or vice versa). To make it more complicated, the ruminations must delve into whether the Attorney will practice (in the main) civil litigation or focus on criminal cases. Therefore, when an Attorney begins to feel the stirrings of movement in his feet for other, perhaps greener pastures, s/he invariably becomes pregnant with anxiety as there is much to consider even before he sets forth his plan into motion. PART ONE The Initial Plan to Leave What do the Canons say must be done by the Attorney? The Legal Profession (Canons of Professional Ethics) Rules at Canon 1 (b) state that: An Attorney shall at all times maintain the honour and dignity of the profession and shall abstain from behavior which may tend to discredit the profession of which he is a member. This is the broad swath of guidance that the Attorney, newly minted or seasoned practitioner must navigate as he contemplates his next move. So, it is clear that even as an Attorney seeks a new opportunity, the manner of the search must ensure that the profession is not discredited. This 1
means that the Attorney must not engage in “dishonourable or questionable conduct” which would impugn his integrity. (see The Bahamas Bar (Code of Professional Conduct) Regulations at Rule 1, Commentary #2). The Bahamas Commentary does not offer definitions for “dishonourable or questionable conduct” and the Jamaican Canon 1b does not elaborate on its stricture. An example suffices. It is submitted that if Attorney solicits an employment opportunity from an opposing party whilst there is a matter sub judice, then that could have the effect of running afoul of Canon 1b. This Attorney would have thus failed to maintain the honour and dignity of the profession and expose it to the disparaging comments such as P.W Grayson’s in Vice Unmasked that Attorneys are so “eager for employment, they pry into the business of men, with snakish smoothness slip into the secrets of their affairs, discern the ingredients of litigation, and blow them up into strife” (http://www.notable-quotes.com/l/lawyers_quotes_v.html ) What and when do you tell your staff? Seniors? Colleagues? Alas, the Jamaican Canons are silent on this area, but the over-arching principle of The Legal Profession (Canons of Professional Ethics) Rules at Canon 1 it is submitted is of import: An Attorney shall assist in maintaining the dignity and integrity of the legal profession and shall avoid even the appearance of professional impropriety. The case of Dowd & Dowd v Gleason. 181 III. 2d 460 693 N.E.2d 358 (http://caselaw.findlaw.com/il-supreme-court/1358302.html) is instructive. Two lawyers decided to leave Dowd for private practice. For months, the partners secretly prepared to leave, all the while promoting a façade of normality and denying all intentions of jumping ship. It is submitted that especially since these were partners, they would be in breach of Canon 1. For other junior Attorneys, the effect may be less deleterious but still of concern. On their departure, the law firm successfully sued them under several legal theories for a multiplicity of alleged wrongs inter alia, breach of employment contract and civil conspiracy. Their employment contract advocated a written ninety days’ notice; they offered literally none as they told the firm on December 31 and immediately thereafter headed to begin to solicit clients. The two departing lawyers were actually partners of some standing in the firm, yet they literally plotted to bring forth the operations to a halt. The Court held that, inter alia, lying to partners about plans to leave, was inconsistent with a partner’s fiduciary duties. From this illustration, it is clear that the Courts will likely, rightly, frown upon actions such as these. Yet the hue and cry will invariably be that, if an Attorney signals an intention to leave, there will be a backlash, and so this is not practical. The reconciliation comes, it is suggested, in looking at the particular employment contract. Dependent on the terms, the Attorney may be able to escape unscathed.
2
What is your duty to the entity? The departing Attorney has a fiduciary duty to the entity (using the term broadly, and recognizing that The Legal Profession (Canons of Professional Ethics) Rules, # 2 defines “Attorney” to include a Firm of attorneys”). Turning again to Dowd & Dowd (supra), the Claimants also sued for breach of fiduciary duty. The departing Attorneys had for months prepared their plan. They bought furniture, obtained firm tax numbers, telephone lines and even paid off the existing firm’s line of credit (according to the Claimants, to effectively reduce their own liability and make their new firm more attractive to creditors). The departing Attorneys had also allegedly solicited a very important client of the law firm, before they formally left the firm. The Court held at page 364, that the dividing line between permissible and impermissible conduct cannot be drawn with “mathematical precision” in such a situation and that there is a “delicate balance”. It recognized that there are certain logistical necessities which are permissible, such as finding office space. The Court continued: Given the procedural posture of the case before us, plainly this is not an occasion for drawing the hard lines. Factual variations can be crucial in determining whether an attorney's duties have been breached, and we cannot speculate as to what conclusions will follow from the facts yet to be found in the case before us. We can, however, set out certain broad parameters. At one end of the spectrum, where an attorney is dissatisfied with the existing association, taking steps to locate alternative space and affiliations would not violate a partner's fiduciary duties. That this may be a delicate venture, requiring confidentiality, is simple common sense and well-illustrated by the eruption caused by defendants' announced resignation in the present case. As a matter of ethics, departing partners have been permitted to inform clients with whom they have a prior professional relationship about their impending withdrawal and new practice, and to remind the client of its freedom to retain counsel of its choice. Ideally, such approaches would take place only after notice to the firm of the partner's plans to leave. At the other end of the spectrum, secretly attempting to lure firm clients (even those the partner has brought into the firm and personally represented) to the new association, lying to clients about their rights with respect to the choice of counsel, lying to partners about plans to leave, and abandoning the firm on short notice (taking clients and files) would not be consistent with a partner's fiduciary duties .” See too, Graubard, 86 N.Y.2d at 120-21, 629 N.Y.S.2d at 1013-14, 653 N.E.2d at 1183-84. It does indeed appear to be a fine line, but one that Attorneys would do well to heed. Admittedly there have been no local case law on point that this writer found (but would be grateful for any citations) but the scenario or at least parts of it, are not farfetched. Can an Attorney properly solicit other Attorneys/other staff to flee in the night with him/her? 3
The Dowd case is replete with drama. The by then departed Attorneys were also alleged to have convinced other Attorneys and other staff to join in their new law firm. The exodus of the partners, attorneys and staff was clearly akin to the words of Bob Marley: Are you satisfied (with the life you're living)? Uh! We know where we're going, uh! We know where we're from. We're leaving Babylon, . . . (Bob Marley and the Wailers, Exodus, https://www.azlyrics.com ) And so, all those who left, obviously answered in the negative about being satisfied with the life they were living and looked forward to leaving the Babylon that was their existence at the Dowd law firm. Regarding this aspect of “poaching attorneys and other staff” the Court declined to make a definite ruling, stating only that the case was so fact specific that such issues be better dealt by the trial judge. The Legal Profession (Canons of Professional Ethics) Rules at Canon II (b) states that, “An Attorney shall not in the carrying on of his practice or otherwise permit any act or thing which is likely or intended to attract business unfairly . . .” This is perhaps the closest that the Jamaican Canons contain to the mischief to be cured when Attorneys decide to leave and there is an allegation of impropriety regarding their recruitment of other Attorneys and other staff members. Obviously, the counter argument is that Attorneys (and indeed other staffers) have skills that are very marketable and if a more lucrative offer arises, they should not be prevented from exercising their freedom of choice of employers. It is submitted that as long as there is no breach of the Attorney’s fiduciary duties and the conduct of soliciting others to join does not amount to gross interference with the current entity’s practice, there should be no violations. Professor Robert W. Hillman puts it in succinct terms: Grabbing and leaving is not itself a breach of fiduciary duty because no partner is permanently bound to a firm. The manner in which partners plan for and implement withdrawals, on the other hand, is subject to the constraints imposed on them by virtue of their status as fiduciaries. (Robert W. Hillman. Loyalty in the Firm: A Statement of General Principles on the Duties of Partners Withdrawing from Law Firms. 55 Wash & Lee L. Rev. 997,999 (1998) http://scholarlycommons.law.wlu.edu/cgi This notion of grabbing and leaving is obviously akin to the Jamaican terms of grabbing and fleeing and the effect is the same. It is notable that the discussions often look at partners. It is submitted here that the issue can extend to senior and junior members of the legal staff as well and are so considered in this paper, even where the paper is silent. Where are you going? Considerations 4
As the Attorney moves cautiously through the minefield that is the transition mode, he/she must consider the kind of entity he now wants to join, or establish if there is that desire. It has been said that an Attorney is perhaps the only profession that can immediately graduate and start his practice and thus be unleashed on an unsuspecting public. Such confidence in the newly minted lawyer is perhaps an ode to the training of the law schools in the region? But in effect, the Attorney needs no pupillage or internship after being called to the bar and so is well within his right to knock up his own shingle and hang it out, leaning, if comes to it. The consideration as to what an Attorney does are obviously guided in the main by his/her personality, the economy and what opportunities actually exist or are being offered. So, should the Attorney hang out his own shingle or join an entity? For an Attorney at the public bar (whether civil or criminal), should the movement be from the public bar to the private civil bar? Should the transition be to the private criminal bar? (This paper notes that often most movement to the private bar sees Attorneys doing more of one area than another). Should the change be from the private bar to the public bar? Or is it an opportunity to move within the public or private bar? Two particular movements will be considered because of the comments and attitudes that seem to accompany them. The movement to the private criminal bar and the movement from the private bar to the public bar. Firstly, the movement to the private criminal bar is invariably greeted thus: welcome to the dark side!
This is an allusion to the dark knight in the original Star Wars trilogy inviting his son Luke Skywalker to join him, when the latter declares with great conviction “ I’ll never turn to the dark side. You’ve failed . . .” (http://www.starwars.com/news/40-memorablestar-wars-quotes ) The Legal Profession (Canons of Professional Ethics) Rules at Canon III (h) states that An Attorney engaged in conducting the prosecution of an accused person has a primary duty to see that justice (emphasis added) is done . . .”. This has been determined to mean that the prosecutor is a minister of justice, not seeking a prosecution but rather the upholding of the balances of Lady Justice’s scales. Perhaps this accounts for the sometimes, sanctimonious attitude of prosecutors? (And the author was a prosecutor for some years and has the highest regard and affection for the colleagues at the public 5
criminal bar but must admit to some feeling of this sanctimoniousness, even if only briefly!) Perhaps this accounts for the view that criminal defense attorneys have somehow sold their souls to the devil. They have less to prove, after all the burden is always on the prosecution. They are seen as always willing to do whatever it takes to win a case, regardless of the client’s guilt! Lay persons and Attorneys alike have actually asked “how can you defend such and such a case/person? The answer must of course lie in The Legal Profession (Canons of Professional Ethics) Rules at Canon III (a): “An Attorney is under no obligation to act on behalf of every person who may wish to become his client, but in furtherance of the ethics of the profession to make legal services fully available, he shall not lightly decline a proffered retainer.” At Canon III (c) it states: “An Attorney shall not be deterred from accepting proffered employment owing to the fear or dislike of incurring disapproval of officials, fellow Attorneys or members of the public.” Canon III (f) says: “An Attorney in undertaking the defense of persons accused of crime, shall use all fair and reasonable means to present every defense available at law, without regards to any personal views he may hold as to the guilt of the accused.” These underpin the obligation and of course the client is entitled to the Attorney’s “zealous” representation and is paying for proper representation and may pay with his loss of freedom. (Notably legal aid assignments are included here, where the sum paid by the client is nominal or non-existent). And, of course, the wonderful movie The Devil’s Advocate gives great credence to the negative view in modern cinematography of the Attorney, willing to go to whatever lengths to secure a win (adapted from the novel by John Grisham): Kevin Lomax: Lose? I don't lose! I win! I'm a lawyer, that's my job, that's what I do! John Milton: I rest my case. A few other issues that occurs when a public Attorney transitions to the private bar include the economics of private practice. The Attorney must now learn billing practices of a firm setting (and if in solo practice, how exactly should a client be billed). Secondly, the movement from the private bar to the public bar is perhaps often viewed as the great firm escape! Whilst there are no specific statistics available, a number of private practitioners do join the public bar annually. Many appear (by sheer observation) to be younger Attorneys who spent a few months literally or a few years in firms, and then take the plunge. An illustration:
6
Some lawyers seeking to escape law firms simply feel unable to withstand one more day at the office. Others want to try something more rewarding but do not feel any immediate pressure to depart. Most fall somewhere inbetween. Departure timetables vary based on individual experiences with firm work and working conditions. According to one survey participant: I decided I wanted to leave my first day there. It took me six and a half years to do it. I knew I wasn’t a long-termer, but I stayed because it was easier to look around from the firm. I finally made the jump, . . . (The Great Firm Escape Harvard Law School’s Guide to Breaking out of Private Practice and into Public Service, p. 2. http://hls.harvard.edu/content/uploads/2008/07/ch-3-timing-yourtransition.pdf ) It is asserted that many Attorneys (and indeed other professionals) can easily identify with this. For a myriad of reasons, one gets a position and remain thus for a longer time than anticipated. Unfortunately, there is no certainty as to when an Attorney gets the call that levitates him/her to the public bar. Indeed, the government, is somewhat different from law firms and other private sector businesses with a legal department regarding hiring decisions. The author makes bold to say that the latter two often decide and thus know beforehand how many new associates they will be able to hire for the next fiscal year, sometimes for two or three fiscal years. Unfortunately, the public bar, which is government funded must wrestle with the constraints of tight budgets, ministerial approvals and departmental policies as well as the ever present, number of positions on the “establishment”. The following illustration is from an American perspective, yet it is an experience that many Attorneys who wanted to become Clerks of Court right out of law school experienced and look back on with great angst. This author certainly did! So please forgive the length of the quotation: “ I applied for an opening at _____ in March, as soon as it was posted. I didn’t hear from them until the agency called in mid-September and asked me to come in that day for an interview. They had to fill the position immediately or they would lose the funding. They made me an offer the day of the interview. There’s a moral to this story—it can take a long time. Be patient. You can apply and then sit there for months not hearing anything and think that nothing’s going to happen. Then, all of a sudden, you get a call, and the final stages of the hiring process can happen much more quickly and informally than you ever imagined!” (The Great Firm Escape. Harvard Law School’s Guide to Breaking out of Private Practice and into Public Service, p. 6. http://hls.harvard.edu/content/uploads/2008/07/ch-3-timing-your-transition.pdf ) The author can add, from personal experience and anecdotal tales, that after a few weeks of waiting and there is no letter, telephone call or the now ubiquitous email, many bright eyed new 7
Attorneys, now somewhat jaded and much depressed, give up hope of landing such a position. They move on of practical necessity. But when the call does come, there are several unexpected features. At the public bar, especially the public criminal bar, junior Attorneys have more independence and responsibilities thrust on them earlier than their counterparts at the private bar. They thus garner their experiences by baptisms of fire. They make decisions regarding prosecutions, evidence to offer and rulings on charging members of the security forces, amongst many other significant issues. In contrast, at the private bar, clients may sometimes be leery of an untried junior Attorney being senior counsel on their matter and may specifically insist that Mr./Miss So and So Senior Attorney personally handle their matter in the crucial appearances etc. This thus leaves junior Attorneys to do laborious research, painstaking note-taking and the like. There may be little opportunity to substantively and actually decide on how best to negotiate the deal, the theory of the case or address the Bench or more ambitiously a jury in a criminal matter. The author humbly suggests that nothing can be added to Mark Beck and Joseph Hartley’s perceptive analysis: In private practice, the client may insist that as the biggest client of the senior partner, he or she is entitled to have the senior partner as lead counsel. Even young government lawyers are accustomed to greater independence and often have unexpected authority and experience given their comparatively few years of practice. Often, they are unused to carrying the bags for another lawyer selected simply because he or she has more gray hair. (Mark E. Beck and Joseph M. Hartley, From Public Service to Private Practice, at p. 2 https://www.americanbar.org./newsletter/publications/gp_solo_magazine_home/2005_jul_aug) With much confidence, the author asserts that the view hereunder is not representative of how Attorneys, especially the more junior associates in a firm view themselves. However, it is important to recognize that many Attorneys as they seek to transition to another environment have experienced ethical dilemmas, burn out, fade out, disillusionment and sometimes even plain despair. There is a tragic view that “a junior associate is like a pencil; you use it until you break it, and then you get another one.� ( http://www.vault.com/blog/workplace-issues-2016-lawsurvey. This 2016 study surveyed about 18000 associates across the USA and there were many opinions put forward with this one being one of the most troubling. The view suggests that associates are like expendable items, tossed aside after its useful life has ended. What can you do/take?
8
As the Attorney forges ahead in his transition plans, he must ensure that he remains worthy of public confidence in the profession as noted in Incorporated Law Institute of New South Wales v R D Meagher (1909 9 CLR 655 at 681): There is therefore a serious responsibility on the Court – a duty to itself, to the rest of the profession, to its suitors, and to the whole of the community to be careful not to accredit any person as worthy of public confidence who cannot satisfactorily establish his right to that credential. Therefore, the Attorney must act with the requisite decorum regarding the following nonexhaustive issues: Clients are not proprietary but it cannot be proper decorum to steal the entity’s clients to use them to seed the Attorney’s fledgling practice or make him more attractive to another entity. The Canons are not explicit regarding this area but it is submitted that Canon I must always guide the Attorney’s posture. Therefore, it is postulated that if for example, the departing Attorney were to lie to the current clients and suggest that they had little choice but to follow the Attorney to his new place of employment, that would be a breach. In particular, such a statement would run afoul of Canon V (o) that “an Attorney shall not knowingly make a false statement of law or fact.” So, as the departure of the Attorney becomes imminent, s/he must exercise great caution in how s/he conveys the information, ie gives notice to existing clients. Some entities have form letters, others none. Care must be taken to ensure that clients understand the issues clearly and that they are not bound to remain with the entity or to move with the departing Attorney. Clearly this particular paragraph contemplates the private bar setting. However, on a side note, at the public criminal bar for example, the transition of Attorneys can also be disconcerting and have an impact. It is not unheard of for a prosecutor to indicate to the Court that the previous prosecutor has left and so a new Attorney will have to be assigned to the file. Obviously there will be much information that is confidential and proprietary to which the departing Attorney would have been privy. Some would be crucial to matters pending, others not so much. The decision as to what a departing Attorney can take is a crucial issue. Obviously, s/he cannot “unknow” information. This issue will be dealt with in more depth below. The lifeblood of legal practice is authorities and so Attorneys tend to amass great reams of these to utilize as necessary. In fact, some Attorneys seem distressed to realize that there is an authority that they have not got in their arsenal, even if it is remote that they may encounter the issue. It is submitted that where an Attorney has personally created his/her own “Authorities folder”, as well as templates and precedents (for example of contracts, mortgage documents, indictments) there is no ethical violation if this goes too on departure. Those that are placed on pertinent case files should of course, remain to aid the next assigned Attorney in the matter.
9
The Attorney work product, that research as to how to proceed with the matter, the thoughts on the theory of the case, authorities, notes on witnesses, and the like appear to the author to be critical to the particular case. Notes of the various times the matter was dealt with (in court, chambers, office setting and the like) often prove crucial to decision making and compliance with court orders etc. It is suggested that all of this remain and not be spirited off by the departing Attorney. Files today are often electronic and hard copies. At first blush it seems simple, do not take files as they belong to the entity. However, because of the advances in technology, the issue of “meta data” is creeping into foreign jurisprudence and so it might be useful to give it some attention here. Metadata describes other data embedded in a document. It provides information about a certain item's content. It gives information about when it was created (which can be crucial for negotiations and the like). A text document's metadata may contain information about how long the document is, who the author is, when the document was written, and a summary of the document. (https: techterms.com/definition/metadata) Therefore it will be also able to literally track changes and show the twists and turns the document might have taken. In Electronic File and Rule 1.10(b). Estate of Kennedy v. Stuart A. Rosenblatt, C.P.A., 2016 WL 6543629 (N.J. App. Div. Nov. 4, 2016) the issue of meta data was considered. There were electronic files remaining in the law firm when the lawyers handling the matter in question had left, taking the paper files with them! The American Bar Association (ABA) rule 1.10 (b) states that: [w]hen a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless: (1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and (2) any lawyer remaining in the firm has information protected by RPC 1.6 and RPC 1.9(c) that is material to the matter. Jamaica has no such specific Canon so it was thought prudent to consider the Canons that have some broad similarity. Thus, it was considered that there were three that literally fit the bill. Firstly, Canon IV which states inter alia that: “an Attorney shall . . . preserve the confidence of his client and avoid conflicts of interest.” Secondly, Canon V(f): “An Attorney shall not accept private employment in a matter upon the merits of which he previously acted in a Judicial capacity or for which he had substantial responsibility while he was in public employment. Thirdly, Canon IV, (t) An Attorney shall not knowingly i)reveal a confidence or secret of his client, or, ii) use a confidence or secret of his client10
1) to the client’s disadvantage; or 2) to his own advantage; or 3) to the advantage of any other person unless in any case it is done with the consent of the client after full disclosure. The matter at issue: whether the electronic files left behind disqualified this particular law firm under Rule 1.10 (b) (2) of the ABA Model Rules. The facts briefly were that a Law Firm had defended a lawyer (hereinafter called “Defendant Lawyer”) in a prior malpractice case (“Prior Case”). After Prior Case was dismissed, the lawyer representing the plaintiff in Prior Case (“Lawyer”) joined Law Firm. Lawyer then filed the same case as before, including against Defendant Lawyer (“This Case”). In this case Defendant Lawyer moved to disqualify Law Firm. Law Firm defended the motion because the lawyers working on Prior Case had left and taken the paper files with them. The Appellate court reversed “conditionally” and sent back the case for further proceedings. Law Firm had erected a “screen” around the electronic files. However, the court said that if someone in Law Firm looked at the substance of the retained electronic files, Law Firm should be disqualified. If, however, all Law Firm lawyers did was look at metadata (emphasis added) to determine whether anybody in Law Firm had looked at the files substantively, then the Law Firm should not be disqualified, and directs Law Firm to delete any electronic files remaining. (http://www.freivogelonconflicts.com/changingfirmsscreeningparti.html), (http://caselaw.findlaw.com/nj-superior-court-appellate-division/1753044.html )
Who if anyone at the old entity does the Attorney ask to act as a reference? According to Harrison Barnes, multimillionaire lawyer turned law coach (and who one presumes therefore has the requisite insight, in his article “Firm hopping” opines on the vexing issue: Large firms tend to give good references as truthfully, they want associates to leave, so new associates can come in, energized and make the firm a lot of money. Small firms and solos tend to give harsh references, they have less at stake, not being dependent on a constant stream of associates.” (https: careers.findlaw.com/legal-career-option/firm hopping). To this, the author would but add that practically speaking as Attorneys seek to transition, they should have already established meaningful positive relationships with a few Attorney mentors. 11
These can include law school lecturers, tutors, judges and parish judges (who may also lecture and tutor). These persons can serve as references if unfortunately, one feels that a supervisor at the entity might cast aspersions on their professional merit as Attorneys and offer a negative report. The Attorney should also consider asking a trusted Attorney friend at the entity to serve as a reference. There are disheartening stories of Attorneys leaving entities and being maligned by Attorneys at such entities and so one needs to be prepared for the possibilities. What you should not do/take, even if they deserve it Canon VI states that “An Attorney has a duty to maintain a proper professional attitude towards his fellow attorneys.�. Therefore, it is running afoul of this Canon to disparage the entity, at least publicly. Of course, contrary to popular belief, Attorneys are human beings, and so from time to time there will be most discourteous words and deeds flowing, but one should strive to this ideal of Canon VI. As legal practice is increasingly steeped in technology, some entities are not using paper files as much as before. Attorneys can stay in one part of the country and work on a document online for all the others in another part of the country to see, sometimes in real time. Therefore, the possibility of the destruction of computer files is a live issue. It is suggested that such an action might well be criminal and the Cybercrimes Act, ss, 2, 3 and 4 speak to the altering or erasing of programmes or data without authorization as being offenses with the requisite penalties. Such actions might well also expose the Attorney to the scrutiny of Canon III (k): Where an Attorney commits any criminal offense which in the opinion of the Disciplinary Committee is of a nature likely to bring the profession into disrepute, such commission of the offense shall constitute misconduct in a professional respect ifhe has been convicted . . . or although he has not been prosecuted the Committee is satisfied of the facts constituting such criminal offense; or he has been prosecuted and has been acquitted by reason of . . . a technical defense Day after Tomorrow: First Day of the Transition If the transition is to private practice, the Attorney must comply with Canon V (s):
12
Subject to the provisions of subsection 2 of Section 5 of the Principal Act, an Attorney shall not practice as a lawyer except by virtue of and in accordance with the practicing certificate issued to him by the General Legal Council (GLC. Obtaining the practicing certificate shortly before the first day of the transition will also help logistically (and though admittedly, not the intended effect, with advertisement!) as the Attorney’s name will be placed on the list of Attorney entitled to carry on a private practice on the GLCs website. Increasingly potential clients are checking the website to ascertain if an Attorney is entitled to practice. Join a lawyer association, like the JBA for goodness sake! The networking opportunities are obvious. However, should there be an ethical or other legal issue, the Attorney has access to a wide pool of experienced practitioners from whom assistance can be sought.
PART TWO Specific Ethical Considerations to assist Attorneys in deciding if they should accept a matter after their Transitions. What does one call the Attorney who accepts a matter where he was formerly on the other side? Turncoat? Spanish Machete? Pragmatist? The key is to remember that: When you become an advocate, you are not required to sign away your soul. You do not lose the right to act on what you believe is right or wrong. If you find yourself working for things and causes that you do not value or believe in, you should be concerned and you should consider changing your course. It is true that as an advocate in an adversarial system, you play a component role. You are not asked to be advocate, opposing counsel and judge in the same matter. When you take on a role, you are bound to act in a manner in line with that role. However, it is important not to confuse your place in the system with an abdication of morality and integrity. In order to be true to yourself, you must understand the rules. You must be able to identify situations that will compromise your beliefs and values and work to avoid them. You must understand where the professional rules give you the space, freedom and mandate to be the moral and ethical person you strive to be (Tibihikirri-Kalyegira, Legal Ethics and Professionalism: A Handbook for Uganda. 2014. http://www.globethics.net/documents/4289936/15294671/GE_African_La w_2_web_final.pdf/b0dc1ff2-bb98-4992-90a8-d734ebe0d864). The overarching test, it is submitted, is if there is a conflict of interest such that it is imprudent or there is the appearance of professional impropriety for the now transitioned Attorney to act. According to the Law Society of New South Wales paper titled Ethics and Conflicts of Interest and Duties, April 2006 at page 3 (www.lawsociety.com.au ), conflicts of interest has 13
increasingly become a problem as there are now more Attorneys, there is increased mobility and clients tend to also change Attorneys in the lifetime of a single matter. It states too that a good rule of thumb to follow, is that if the Attorney cannot carry out one fiduciary duty without breaching another, then the proposed course cannot be properly taken. This paper embraces the view that: “the best ethical practice of members of the legal profession impact the daily efficient administration of justice based on the paramountcy of their duty as officers of the court “, ( The Right Honourable Sir Dennis Byron, President of the Caribbean Court of Justice. We are all in it Together: Judicial Ethics, Judicial Temperament and the Role of the Legal Profession. Presented at the Continuing Legal Education Committee of the Jamaican Bar Association Panel Discussion Hilton, Montego Bay Jamaica Date: Friday 15th November, 2013). There is not much in the way of case law on this area in Jamaica (and any citations are welcome). So, this section again will feature case material from other jurisdictions. The author has endeavoured to fit the material into the Jamaican Canons nevertheless. The “appearance of professional impropriety” Canon I speaks to the avoidance of even the appearance (emphasis added) of professional impropriety as there is much anxiety to ensure that Attorney conduct maintains the dignity and integrity overall of the profession. In Westinghouse Electric Corpn v Gulf Oil Corpn, the US Court of Appeals for the 7th Circuit–588 F.2d 221 7th Cir. 1978 http://law.justia.com/cases.federal/appellate-courts ) considered rules of the American Bar Association Code of Professional Responsibility at Canon 9 which provide that “a lawyer should avoid even the appearance of professional impropriety” The wording is the same as in Jamaica’s Canon I. The facts of this case were that one Mr. Bigbee, an Attorney worked for Gulf Oil Corporation, for many years on uranium leases. Sometime later he resigns and joins a large law firm in Chicago. The law firm subsequently sues Gulf Oil Corporation for uranium price fixing. The corporation then moved to have Mr. Bigbee ‘s firm removed from the case and thus from representing the plaintiff. The Court considered that the determination of whether there is an appearance of impropriety rested on if there was confidential information that might have been given to the attorney previously. The examination also considered how such would fit in relation to the subsequent matter in which the disqualification is sought. The court’s analysis involved a “realistic appraisal” of the possibility that confidences had been disclosed in the earlier matter which would be harmful to the client in the later matter, when that said client is now the lawyer’s adversary!
14
Importantly, the Court did not delve into a detailed probe of the type of issues that the Attorney had worked on, because that would have meant breaching confidences. It was sufficient to ask these three broad questions: What was the scope of the prior representation? Could the lawyer have learned confidential information? Would such information be useful in the current litigation? The answers were all in the affirmative and so the Court held: the lawyer and his new firm employer were disqualified. It is humbly submitted that this is a useful and practical analysis to apply when an Attorney who has transitioned from mode of employment to another and finds this issue one that must be addressed. Thus, if the answers are all in the negative, this author sees no ethical dilemma. Rakussen v Ellis Munday & Clarke [1912] 1 Ch 831 is authority for the view that the mere fact that an Attorney has acted hitherto for a client in a particular matter, either before or after litigation began does not in and of itself (emphasis added) entitle the said client to restrain the solicitor from acting against him. (Notably this was overturned by Prince Jefri, noted later) The issue must turn on whether or not there was some degree of likelihood of mischief or prejudice. The interpretation is that if there was confidential information imparted by the client then the duty not to disclose such information continues after the retainer has ended. This case was peculiar on its facts and was perhaps to be viewed in a restrictive manner. The two partners literally had separate matters, neither knowing about the other’s clientele or their intricacies. The Court felt assured that there was no prejudice and did not order an injunction. Prince Jefri Bolkiah v KPMG [1999] 2 AC 22 established that where a solicitor had information deemed confidential, he cannot be allowed to against that client unless there is absolutely no risk of disclosure. If there was a risk of disclosure of confidential information by the Attorney, then that risk must be a real one, not a merely fanciful risk, in the realm of infinite possibilities. However, the test also established that the risk need not be substantial. Withdrawal forthwith . . . for good and compelling reason� Canon IV, (q): An Attorney shall withdraw forthwith from employment or from a matter pending before a Tribunal . . . (vi) where for any good and compelling reason it is difficult for him to carry out his employment effectively. The case of Saminadhen v Khan [1992] 1 All ER 963, CA is most instructive. Lord Donaldson MR: I can conceive of no circumstances in which it would be proper for a solicitor who has acted for a defendant in criminal proceedings, the retainer having been terminated, to then act for a co-defendant where there is a cut-throat defence between the two defendants. I think it is desirable that that should be known.
15
It is submitted here that a circumstance such as this would easily be seen as a breach of Canon IV(q). Notably, it is not difficult to envision how such a scenario could replicate itself many times over and so Attorneys are urged to guard against such instances. An example is offered. The Attorney had been retained to make a bail application for a defendant. The Crown outlines the allegations and the roles of the various co-defendants then before the court. The Attorney soon realizes that the matter was one in which the same Attorney had once stood in the shoes of the Crown with the same matter, vigorously opposing bail. The Attorney asked the Crown to check the endorsements on the file and in fact found that that was so. The dilemma was clear. The Attorney had to advise the Court of the discovery and indeed indicate to the defendant that the retainer had to be returned. The Court was extremely gracious and the Attorney withdrew, poorer of pocket but richer in the experience of how to approach the ethical dilemma that had just been avoided. Canon IV: “An Attorney shall act in the best interest of his client . . . represent him . . . within the bounds of the law. He shall . . . avoid conflicts of interest” Mark Summerfield. Senior Patent Attorney Found Guilty of ‘Unsatisfactory Conduct’ April 15, 2012 (http://blog.patentology.com.au/2012/04/senior-patent-attorney-found-guilty-of.html) is instructive in two areas relevant to the present discussion. Firstly, it was by the Disciplinary Tribunal of Australia, regarding patent and trademarks attorneys and secondly, the senior lawyer was charged but also the junior lawyer. The latter had only been recently admitted to the bar and was being supervised by the senior attorney. The Disciplinary Tribunal found a former partner of a firm of patent and trade mark attorneys in Adelaide guilty of unsatisfactory professional conduct, for failing to resolve a conflict of interest between two clients, and thereby being in breach of clause 3.2.8 of the Code of Conduct for Patent and Trade Marks Attorneys . A second attorney – who was only recently called to the Bar, and who had been working under the supervision of the senior attorney – was also charged by the Professional Standards Board, however that charge was dismissed. The Tribunal also concluded that the senior attorney (and presumably the junior attorney also) would now have a fuller understanding of the duty, and that of the firm, ‘to avoid situations of conflict, or possible conflict of interest and the duty to resolve any such situation.’ The author’s comment here is that the junior attorney was newly admitted to the bar and was being supervised. How, if at all could he actually have dared to suggest to the senior and clearly more experienced practitioner that there might be a potential ethical conflict? That in and of itself is an ethical dilemma, one where he might have ended up losing his job for perceived insubordination. Perhaps that was the underlying reason why the charges against him were dismissed. Canon IV, (q) An Attorney shall withdraw forthwith from employment or from a matter pending before a Tribunal . . . where for any good and compelling reason it is difficult for him to carry out his employment effectively. 16
It is said that clients are often not interested in knowing the law. They are even less interested in what the law should be. They are interested in how the law affects them and their related interests, and also what it is going to cost them. Crucially, they want to know what you think they should do. If you do not feel comfortable answering these questions, perhaps private practice is not for you. These are the paraphrased words from the Australian patent attorneys firm Cullen (www.cullen.com.au/ideas-into-assets-blog ). They ring true for all clients and as such give rise to the adage that the client is the Attorney’s worst enemy. In criminal matters, questions asked usually surround: Can I get some bail? should I plead? Do you think I should plead? What would you do? What do you think I should do? Can I pay a fine and go home? How long is the sentence? If there is an answer the client doesn’t like, the next salvo is: aren’t you my lawyer? All of these issues seem to fit under Canon IV (q) but it is openly admitted that they are extremely difficult to articulate on paper and even more so difficult in reality. A bit of advice from Abraham Lincoln seems to be useful here: Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser---in fees, expenses, and waste of time. As a peace-maker the lawyer has a superior opportunity of being a good man. There will still be business enough. (Roy P. Basler, ed. Vol. II The Collected Works of Abraham Lincoln. "Notes for a Law Lecture" (July 1, 1850), p. 81. 1953 edition published by the Rutgers University Press, New Brunswick, New Jersey. (www.rogerjnorton.com/Lincoln) The author can only adopt these wonderful words, all the while bearing in mind that as creatures of instruction there may be little that one can do to prevent the client who is bent on litigation from doing otherwise. On the issue of criminal matters, there is of course the tried and true fact and sometimes fall back, that the Crown must prove every element of the offense. “Not knowingly reveal a confidence or a secret . . . to client’s disadvantage . . . own advantage . . . other person . . . unless . . . consent . . . after full disclosure” The paper turns now to Canon IV, (t): An Attorney shall not knowinglyi)reveal a confidence or secret of his client, or, ii) use a confidence or secret of his client1) to the client’s disadvantage; or 2) to his own advantage; or 3) to the advantage of any other person unless in any case it is done with the consent of the client after full disclosure. 17
In the case of MacDonald Estate v Martin (1991) 77 DLR (Fourth) 249 SCC, it was held that a lawyer who has acted for a client in a matter should not thereafter act against him. This is a succint position but it is submitted that it might ignore certain practical realities and also that the better test might be that of substantial responsibility as advocated in the Jamaican Canon at Canon V (f). “Substantial Responsibility”
Canon V, (f) : “An Attorney shall not accept private employment in a matter upon the merits of which he previously in a Judicial capacity or for which he had substantial responsibility while he was in public employment” This area for ease of reference, will be broadly discussed as acting against a former client. In Mills v Day Dawn Block Gold Mining (1882) 1 QLJ 62) the Court held that if a former client swore out an affidavit to the effect that he had passed confidential communication to his Attorney, then the Court would restrain said Attorney from acting for the other party in any proceeding relative to the same circumstances and the Court would not weight conflicting testimony as to the existence of their confidence. Winston Finzi and Mahoe Bay v JMMB Merchant Bank (28th and 30th July 2015, ) The application therein was for an order barring Mr. Michael Hylton QC and the firm of Hylton Powell from representing JMMB in the substantive litigation, on the ground that Mr. Hylton had acted for Mr Finzi in the past. Sykes J refused the application. What of the situation where an Attorney whilst representing the Crown on a date set down for disclosure did just that. Later on, the said Attorney is employed to a firm handling the matter for the defendant. Should the Attorney be enjoined from participating because of this cursory handling of the matter previously? Perhaps one needs to look to the view that: “there is reason to differentiate for disqualification purposes between lawyers who became heavily involved in the facts of a particular matter and those who enter(ed) briefly on the periphery for a limited and specific purpose relating solely to legal questions. In large firms at least, the former are normally the more seasoned lawyers and the latter the more junior. This is not to say that young attorneys in large firms never become important figures in certain matters but merely to recognize that some of their work is often of a far more limited variety.” “Attorney’s conduct towards fellow Attorneys . . . characterized by courtesy . . .” Canon VI, (a) “An Attorney’s conduct towards his fellow Attorneys shall be characterized by courtesy and good faith and he shall not permit ill-feeling between clients to affect his relationship with his fellow Attorneys or his demeanour towards the opposing party”
18
It is a basic precept that Attorneys are all Learned Friends. This is despite the less than collegial behaviour is sometimes exhibited. However, the author adopts this passage from Shakespeare: And do as adversaries do in law, strive mightily, but eat and drink as friends. (The Taming of the Shrew, 1.2.280) (http://www.shakespeareonline.com/quotes/shakespearelawyers.html ) Two real examples are noteworthy here, (1) client says: “I heard you call my wife’s lawyer your friend in court today. Now that you realize that, how can you represent me?” What is the response to this? The Attorney had to explain as succinctly as possible the fact that the term is one of respect for the other Attorney but also had to impress on the wavering faith the client now had, that there was no impediment to zealous representation, friendship aside! What about this (2) client says: “You seem to be very familiar with the judge, the other lawyers/prosecutor/police. I am not so sure you should do my case.” To this the Attorney had to cautiously respond that familiarity is not necessarily a bad thing as it meant that the Attorney perhaps understood the temperament of each of those parties a little better! The author would but add this slightly salacious quote: “good lawyers know the law, great lawyers know the judge.” For the next bit of information, the author thanks Mr. Jeremy Taylor, Senior Deputy Director of Public Prosecutions (and who also read the draft of this paper) for sending this publication which is a treasure trove that all practicing attorneys should read. Whilst it is about clients’ experiences in the courts in Trinidad and Tobago, it truly reflects the experiences court users in Jamaica have. It is an easy read, with a conversational style and the almost 80 pages fly right by because of the truths coming off the pages. It certainly is more entertaining than many of the judgments Attorneys have been forced to read! “It’s almost a year, and we have not really reached anywhere.” The frustration in her voice was clad in a slow-paced, almost collected tone, which revealed just how over it she really was. There was very little that felt like family to her even when at the Family Court. The tired mother of four found solace in another court user as they both sat in the waiting area. It seemed as though all she needed was someone to listen as no one would listen to her; not even by way of her attorney, “To me this senior attorney is always talking … To me he has been given an opportunity to talk… But to say my attorney getting an opportunity to voice and really stand up for me and thing, I don’t think it was fair. The only thing I could think is the other 19
attorney being favoured because she is senior.” (emphasis added) (Ellron Elahie et al. Reflections of an Interested Observer. Ethnographic Musings of the Court User’s Experience in Trinidad and Tobago, p.29. Judicial Education Institute of Trinidad and Tobago, 2017). The court user in this excerpt pithily defines how indeed that scenario play out in courts sometimes. It is not unusual for junior Attorneys to complain about how they are treated in court regarding when they are heard by the Court. An example from the criminal bar suffices. Many have been heard to say that despite arriving early for their matters, they are still relegated to being heard last and the woe is greater if there are several Queen’s Counsel present in Counsel’s bench! (Many senior attorneys are quite gracious and may give junior counsel leave to mention matters before theirs.) To be fair the author has actually seen several Judges and Parish Court Judges, after respecting the tradition of seniority for a while during the court day, ask more junior counsel to mention their matters. Indeed, as the Court did that it made sure to indicate that many of the junior Attorneys had been in court since 10am and whilst seniority must be respected, it is only fair that a few of the junior Attorneys be heard. In concluding on this point, the author is in no way disparaging the rule of seniority in court and has actually greatly appreciated it from time to time, whether it is because the author has in fact the most senior or needed time as a junior Attorney to collect her wits and rise to her feet without sounding as nervous as she felt. Judges of the Court of Appeal and the Supreme Court Two Canons are important here. Canon V, (f): An Attorney shall not accept private employment in a matter upon the merits of which he previously in a Judicial capacity . . . And Canon V, (g): “An Attorney who previously held a substantive appointment as a Judge of the Supreme Court or the Court of Appeal shall not appear as an Attorney in any of the Courts of the island, after demitting office” As regards this Canon, it seems appropriate here to say that even as such Judges are properly prohibited from appearing, there is much room to learn from their experiences. Many have sat on Boards and Commissions but it seems to the author that their experiences could be formally utilized in other ways in the court system, such as in training Attorneys and Judges. Parish Court Judges Nothing in the Parish Court Act serves to prohibit their return to practice “appearing as an Attorney”. There are several former Parish Court Judges (then Resident Magistrates) Attorneys 20
who have returned to private practice. Having heard literally hundreds of matters in their careers on the bench they have to be cautious that there is no conflict of interest. There is no formal mechanism in place for this and so it is suggested that the self-checker at the end of this paper be considered as a possible tool. An interesting case occurred a few years ago. A Parish Court Judge (Resident Magistrate as it then was) was hearing the preliminaries for a case set down for trial on that day. The case had been sent back by the Court of Appeal for retrial. Upon hearing the Crown’s opening, the Parish Court Judge asked the Crown Counsel and Counsel for the defense to approach the bench. The Learned Parish Court Judge advised that she recalled the matter and in fact had more than a passing knowledge of the case, having been the Clerk of Court with conduct of it. The Learned Parish Court Judge then gave the Attorney for the defendant time to explain the developments to the defendant before proceeding to recuse her/himself in open court. The Learned Parish Court Judge advised the defendant that there was a conflict of interest and s/he could not hear the case. The matter was immediately transferred to be heard before another Parish Court Judge. The defendant disagreed that the Parish Court Judge had to recuse her/himself and opined that much to the defense Attorney. Interestingly too the defendant actually remembered the Parish Court Judge as having tried the case but opined to the defense Attorney that there was confidence that the Learned Parish Court Judge would be fair and should have tried the case. To the client there was no ethical dilemma and if there was the client easily resolved it! If only it were that simple! The case also illustrates that there is no mechanism to determine conflicts of interests in matters that the Attorney may have had a substantial role in, in a previous setting. Oops, almost missed that conflict issue: time for formal mechanisms? The next case is delineated in some detail as it was one the few local cases covering conflict of interest considering this paper’s specific topic regarding employment. This case shows clearly how the employment of one Attorney impacted on an issue in the court, where the said Attorney was not even acting for any party. The author therefore hopes the parties forgive the liberty to put in some amount of detail. The case is Winston Finzi and Mahoe Bay Co Ltd v JMMB Merchant Bank [2015] JMCA App 32 28, 29, 31 July and 5 August 2015. The Court was hearing a matter. It became clear to the Court that an attorney-at-law and a former partner in a law firm, had acted in connection with a share sale transaction regarding one of the present parties, was the Court’s spouse. All counsel in the present matter were advised of the Court’s spouse’s then involvement and invited to take instructions from their respective clients. They were to examine if they felt able to continue and if not, alternative arrangements could immediately be made for another Court to hear the case. All counsel present advised that they had taken instructions. There were no objections from the clients. Indeed at least one client was in court when counsel announced the instructions. Shortly 21
thereafter, the Court received a letter from counsel for the applicant requesting that the Court recused. The counsel for the other parties disagreed and stated too that in any event submissions would be a better course to enable a proper determination. The issue now looming large was if the Court should indeed recuse in light of all of the foregoing. The Court approached the issue thus: “The answer to this question must turn, it seems to me, on whether in all the circumstances Mr. Finzi/Mahoe Bay are to be regarded as having waived their right to object to my participation in the proceedings on the basis of the matter disclosed to the parties by me.� (Ibid, at # 15 ) The Court then cited Millar v Dickson ( [2002] 3 All ER 1041, at # 31 and 35 ), which noted that the term 'waiver' is a voluntary, informed and unequivocal election by a party opting not to claim a right or raise an objection which it is open to that party to claim or raise (emphasis added)� (Ibid, at #16). The Court also noted that Auckland Casino Ltd v Casino Control Authority ( [1995] 1 NZLR 142, 151) made it clear that a party who, in the course of a hearing, has become aware of facts which may constitute disqualification for bias or otherwise, will be held to have waived the objection, or refused discretionary relief, if he allows the hearing to continue without protest. The Court concluded that: In my view, these authoritative statements make it clear that an objection to a court or judge hearing a matter on the ground of apparent bias can validly be waived by a litigant, provided that his decision to do so is voluntary, informed and unequivocal. In the instant case, as I have already indicated, no pressure was exerted on the parties to opt for one course over the other. no satisfactory reason has been advanced to allow me to go behind what I consider to be the clear and unequivocal waiver by Mr Finzi/Mahoe Bay of their right to object to my continuing to hear the matter after my disclosure. The belated application for me to recuse myself is accordingly refused. (Finzi and Mahoe Bay v JMMB Merchant Bank, supra at #20). Other Staff The office staff of every law entity is core and crucial to success, whatever the measurement. The term paralegal staff will be used here but is to be understood to mean legal secretaries, paralegals, clerks, assistants and so on) However there has been little if any attention judicially on this aspect of when paralegal staff transition between employment. Importantly, while there are many paralegal training institutions locally, there is no true regulatory body (and the author stands corrected) for this extremely important group of staff in a law entity. The author fears little disagreement when it is opined that many paralegals know the case file as well as and sometimes better than the Attorneys. These foreign authorities show the import of the group in regard to conflicts of interest. 22
Ullman v. Denco, Inc., (No. 14-cv-843 SMV/GBW (D.N.M. April 22, 2015): Law Firms A & B are opposite in this case. B hired away A’s sole paralegal after courting the paralegal for employment, who had worked on this case. B set up a timely screen around the paralegal to prevent any potential conflict. A’s client moved an application to disqualify B from the case. The Court granted the application to disqualify the paralegal. The Court stated that non-lawyers may be screened where lawyers may not. However, the court was influenced in this case primarily by the following: the minimal prejudice to B’s client of the paralegal’s disqualification; the importance of the information the paralegal learned at A; the appearance to the public of the timing of the hiring; and the size of B. (http://www.freivogeloncnflicts.com/changingfirmsscreeningparti.html) In McMillan & McMillan (unreported judgment of Finn, Kay and Moore JJ, Full Court of the Family Court of Australia at Melbourne unreported 6 October 1999 [2000] Fam Ca 1046, the Full Court examined an appeal wherein orders had been made restraining a firm of solicitors (Firm A, for clarity) from acting in Family Court proceedings where a “non-legally qualified law clerk” had previously been employed by the solicitors (Firm B) for the opposite party. The law clerk, in the course of the then employment worked on that very party’s matter. The client swore out an affidavit that he had passed confidential information to the said law clerk at the time and had apparently spoken on the phone with the law clerk was now working as a secretary for Firm A. The Full Court indicated that it was immaterial that the employee was not a legally qualified Attorney. The appeal was therefore dismissed and the firm enjoined from acting. (http://www.holmeslist.com.au/content/upload/Conflict%20of%20Interest.pdf) Finally, the issue of the movement from law school clerks to employment. Many law school students work part-time at legal entities. There is no reported case locally but there is a real ife example that is noted here and a case from the USA. In the local real-life example: The law school student did internship with a defense Attorney on a matter, taking the client instructions, researching authorities and attending court with the Attorney. The law school student shortly after admission became a prosecutor. In the course of preparing the daily list of court cases, the Attorney realized that the Attorney seemed to be remember odd bits of information from the case. The Attorney proceeded to obtain the previous file from the court below and not only saw the Defense Attorney’s name on the transcript but also
23
the Attorney’s name with the honourable title “ Mr./Miss AB, law intern with Mr. XY, Defense Attorney. The Attorney, then disclosed this conflict of interest in open court and the matter was adjourned for a new prosecutor to have conduct of the matter. A thread that seems to run through the ancedotes in this paper is that there appears to be no formal conflict of interest checks. Fortunately, in all of the anecdotes noted, the matter was properly resolved by the particular Attorney. Interestingly it was not the opposite Attorney or the client who recognized the conflict but the respective Attorney or Judge or Parish Judge. This, to this author, clearly speaks volumes of the manner in which the ethical principles run through local practitioners (despite the notoriety that attends when there is Attorney misconduct [mainly for conflict of interest regarding clients funds], especially those leading to disbarment). The following reported case is also instructive regarding law clerks/interns, from the USA. It is OneBeacon Ins. Co. v. T. Wade Welch & Assoc., 2012 U.S. Dist. LEXIS 14663 (S.D. Tex. Feb. 6, 2012). The court declined to make an order to disqualify the affected then lawclerk/intern. Notably the matter turned specifically on a fact-specific “substantial-relationship” analysis. The court grappled with the issue as to the fact the transitioning/moving Attorney at the “new firm” had been a law clerk at the "old firm”. The court noted that for disqualification purposes he would be treated as a lawyer at both the "old firm” as well as the "new firm”. In the court’s view this required the substantial-relationship analysis. (http://www.freivogelonconflicts.com/changingfirmsscreeningparti.html PART THREE Conclusions and Conflict Check Systems When An Attorney Is Employed/Starts a practice The case of Prince Jefri Bolkiah v KPMG ( a Firm) [1999] 1 All ER 517 indicated that the protection of confidential information that had been learnt in the former representation was crucial as regards conflicts of interest. The House of Lords, at p. 517 held that: Like a solicitor, an accountant providing litigation support services owed a continuing professional duty to a former client following the termination of the client relationship to preserve the confidentiality of information imparted during the subsistence of that relationship. That duty was unqualified and required the accountant to keep the information confidential, not merely to take all reasonable steps to do so, and also not to misuse it. Where, therefore, a former client established that the defendant firm was in possession of information which had been imparted in confidence, that he had not consented to its disclosure, and that the firm was proposing to act for another client with an interest adverse to his in a matter to which the information was or might be relevant, the court would intervene to restrain the firm from acting for that other client, unless the firm satisfied it, on the 24
basis of clear and convincing evidence, that effective measures had been taken to ensure that no disclosure would occur and that there was no risk of the information coming into the possession of those acting for the other client. Although there was no rule of law that Chinese walls (emphasis added) or other arrangements of a similar kind were insufficient to eliminate the risk, the presumption was that, unless special measures were taken, information moved within a firm and, to be effective, those measures had to be an established part of the organisational structure of the firm, not created ad hoc (emphasis added). Rakusen v Ellis Munday & Clarke [1911–13] All ER Rep 813 overruled. This case also highlighted some of the measures that an entity could implement to prevent confidential information being passed. The author wishes to highlight the fact that the Court said that such measures had to be an established part of the overall structure of the entity. Any method utilized could therefore not be an ad hoc one. There are no known studies on the extent to which local entities actually utilize conflict check systems but it appears that at least a few have some kind of checks in place. Examples of conflict check systems vary but these appear to be popular. Firstly, entities use registers. These registers list clients’ cases and the attorneys working on them as well as the opposing parties. Secondly there is the use of checklists, akin to the know your client checklist of a financial entity. New Attorney arrivals are asked to complete these for the perusal of senior staffers with the requisite decision-making responsibilities. Alice Carter and Caroline Patterson. Conflict of Interest – when to stay in and when to get out, p. 16-17. (http://www.holmeslist.com.au/content/upload/Conflict%20of%20Interest.pdf). This Australian article gives some practical advice regarding the resolution of ethical dilemmas. After the Attorney deems that there is a potential conflict of interest s/he should immediately seek advice from a senior Attorney in the entity or another senior Attorney in whose ethically sound legal practice s/he reposes trust and confidence. Secondly, if it is the particular Attorney that might have the conflict he should seek a formal opinion from the ethics committee. In Jamaica, there is no specific Ethics Committee, but it is submitted that the Disciplinary Committee might well be the Committee to consider such issues, unless the General Legal Council determines that a particular committee is needed. A brief perusal of the matters the Disciplinary Committee had considered revealed about sixteen cases over the last twenty years that touched and concerned conflict of interest. None spoke specifically to the issues that might arise when the Attorney changed employment (and the author stands corrected and would be grateful for any such citations). Thirdly, the Attorney should discuss the issue with the client. If the issue is with the Attorney himself, the Attorney should advise the client to terminate the retainer. As painful as this is possibly
25
going to be, the Attorney should return any fees. The Attorney should also advise that the client retains new counsel. Of course, if the Attorney has done the necessary due diligence regarding the conflict of interest issue and has resolved that it is curable then he could possibly proceed. Such an analysis could result in relevant undertakings to the affected client(s) regarding non-disclosure of confidential information and disclosure to the Court as well. On this note, if the conflict is with the opposing Attorney, it is submitted that this Attorney, as a professional courtesy, raises the matter with that Learned Friend. When that Attorney appropriately resolves the conflict of issue it should be clearly stated (such as withdrawal, undertakings, other Attorney having conduct of the matter, etc). Databases are being offered by various companies that do conflict checks of new Attorney arrivants, existing clients versus prospective clients and the like. There is no doubt that as we move forward these will become more commonplace. Conclusion: Conflicts of interest will continue to arise as long as there is legal practice and as long as Attorneys move across town, across the parishes and even internationally to make or seek other employment opportunities. Jamaican Attorneys are found in far-flung corners of the world and as they continue to make their impact, it is inevitable that increasingly courts will be asked to resolve conflicts stemming from employment transition.
26